BERNARD NEWMAN, Senior Judge of the United States Court of International Trade, sitting by designation:

Introduction

Plaintiff seeks to recover damages in the sum of $300,000 arising from the sinking of its barge and cargo, alleging that the sinking resulted from defendant's negligence during the course of defendant's towage of plaintiff's barge. Further, plaintiff contends and there is no dispute, that this is a Rule 9(h) cause of action and is within this court's admiralty and maritime jurisdiction under 28 U.S.C. § 1333(1).

Trial was held to the court, and in due course the parties submitted post-trial findings of fact, conclusions of law and post-trial memoranda of law.

The Facts

At all relevant times, plaintiff was the owner of a hopper barge known as the Weeks
*fn1"
282 ("the 282") and defendant, Gowanus Towing Co., Inc. ("Gowanus"), was the owner and operator of the tugboat Taurus. The Taurus was an 85 foot, single crew pilothouse controlled tugboat with a 750 horsepower engine, and carried a crew of four consisting of a captain, engineer and two deckhands. The 282 was a "dumb" barge without any motive power, measuring 146 feet long, 38 feet wide and 17.1 feet deep, with a cargo hold 15 feet deep and several airtight compartments below deck.

During the late evening, at about 11 o'clock of Thursday, July 3, 1980, with the light barge 284 in tow,
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the Taurus arrived at the Industrial Scrap Iron dock, 147th Street in the Harlem River, The Bronx, New York. Thereupon, the Taurus performed various maneuvers for removal of the loaded 282 and replacement of it at the dock with the 284. In preparation for the voyage upon which the 282 was about to embark, Captain Schmeelk
*fn3"
of the Taurus and his two deckhands fastened the 282 to the tug by securing the barge to the Taurus' starboard side with a strap, bow line and stern line.

The 282 was loaded with 1600 tons of scrap metal, and according to Captain Schmeelk, was fit to be towed on the intended voyage.
*fn4"
The captain testified that the 282 was on a level keel, in good trim (with no list), and had a freeboard of 2 l/2 to 3 feet all around. It was stipulated that at the time the 282 was picked up by the Taurus, the barge was free from any cracks or fractures of its corner wrapper plates.

The destination of the tow was Weeks' docking facility at the north side of Pier C, Greenville Yard, Jersey City, New Jersey, requiring a voyage of some 21 miles. Specifically, the voyage consisted of approximately two miles in the Harlem River passing under five bridges, 16 to 18 miles in the East River under another four bridges, with the remainder across the Upper New York Bay. At no time during the voyage were any Weeks personnel aboard the 282.

While proceeding south in the Harlem River, the heavily laden 282 dragged bottom for almost one-half mile (from 105th Street to 98th Street), but the river bottom was silt or mud and the parties agreed in response to the court's questioning that no damage resulted from the dragging. The captain testified that although he had no reason to complain about the barge's load at The Bronx Industrial Yard, he did complain to his dispatcher after the voyage was completed that he would not tow another scow out of The Bronx Industrial Scrap Yard if it was that heavily loaded (Tr. at 84-90).

As the tow entered the East River, the Taurus encountered an incoming tide too strong to "buck", given the 1,600 ton load of the 282 with the 750 horsepower of the tug.
*fn5"
Captain Schmeelk radioed his dispatcher for assistance, but was advised that none was available. The dispatcher instructed the captain to "tie up someplace until the tide slacked." (Tr. at 49).

Shortly after midnight on July 4, 1980, the captain attempted to tie up at a bollard between the fire boat station and the Sanitation Pier at 91st Street in the Harlem River, but was notified that it was private property and thus the barge could not be tied up there.
*fn6"
Thereupon, the captain maneuvered to the north side of the Sanitation Pier, and tied up with merely a single line from the port bow corner of the 282.
*fn7"
The pier was about 40 feet long, 8 to 10 feet wide, and was of wooden construction with a concrete deck.

The line of the dock was about 15 feet long, and the port bow corner of the barge (as identified by Captain Schmeelk
*fn8"
) was approximately five feet from the dock. With the tow apparently secured, the captain fell asleep at about 1 a.m.

At about 3 a.m., Captain Schmeelk was awakened by the tug colliding against the 282. The captain testified that he heard, felt, or sensed, four or five "bangings," but did not know how many other bangings may have occurred before he was awakened (Tr. at 56).

Upon investigation, the captain observed that a large tug was proceeding up the East River through Hell's Gage, and the wash from the that vessel was coming up against the Taurus causing it to bounce against the 282 (Tr. at 56). There were rubber tire and rope fenders between the tug and the barge, and at no time did the steel hull of the tug come into contact with the stell hull of the barge. Significantly, however, Captain Schmeelk stated that he did not know whether the corner of the 282 struck the pier or any other object (Tr. at 70-71).

The captain testified to the effect that when he went out on deck to investigate the cause of the bumpings, the other crew members were "[d]own below in the galley, I believe" (Tr. at 56). None of the other three crew members of the Taurus were produced at the trial.
*fn9"

Without inspecting the 282 for damage, the captain ordered resumption of the voyage. The remainder of the trip was apparently uneventful, and there was no shifting of the barge's cargo.

Upon arrival at the north side of Pier C at 5:35 a.m., July 4th, the Taurus made a turn and moored the 282 in the reverse direction from which she arrived. Captain Schmeelk, with the assistance of his deckhands, secured the 282 with a bow and stern line alongside another loaded barge, the 206. The 206 was already tied up to the pier, and the 282 was then tied up "outside" the 206. Captain Schmeelk testified that the 282 had the same freeboard as when she left 147th Street in the Harlem River, viz., 2 1/2-3 feet all around.

The depth of the water on the north side of Pier C was 20 feet at low tide, deep enough to accommodate the 282 which was drawing about 13 1/2 feet. There was no difficulty with the berth; the weather was good, the sea was calm, and there were no high winds.

According to Hedley M. Weeks, Vice President of Operations of Weeks Stevedoring, the only activity that takes place at Pier C is conducted by Weeks personnel and involves Weeks equipment. Mr. Weeks further testified that over the weekend of Friday, July 4th, to Monday morning, July 7th, there was no activity at Pier C, and that Weeks had no personnel at the pier other than a resident ...

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